Labour Court sends NSFAS dismissal dispute back to CCMA after setting aside award

The Labour Court in Cape Town has set aside an arbitration award that had found the dismissal of a former National Student Financial Aid Scheme (NSFAS) accountant to be substantively unfair, and referred the matter back to the Commission for Conciliation, Mediation and Arbitration (CCMA) for a fresh arbitration before a different commissioner.

Background of the dismissal

Zenobia Abrahams, who had been employed by NSFAS since November 2006, was dismissed in September 2023 after disciplinary proceedings into allegations that she forwarded confidential work emails from her NSFAS account to her personal Gmail account.

The judgment records that between March and October 2022 Abrahams forwarded nine work emails containing NSFAS information to her personal Gmail account. She was charged with Intentional Disclosure of Privileged and Confidential Information and, following a disciplinary hearing chaired by an external presiding officer, was found guilty of misconduct and summarily dismissed.

CCMA award in favour of Abrahams

Abrahams challenged her dismissal at the CCMA, where Commissioner C.M. Bennett ruled in April 2025 that the dismissal was substantively unfair. The commissioner concluded the conduct amounted to a less serious breach and ordered her retrospective reinstatement with back pay.

The CCMA award calculated back pay at over R1 million, using a figure of 20 months’ remuneration at R52,250 per month.

Labour Court findings and reasons

The Labour Court, in a judgment delivered by Acting Judge C. de Kock, held that the CCMA commissioner had misdirected himself in assessing both the misconduct and the appropriate sanction. The court said the commissioner had treated the matter as though NSFAS had to prove that Abrahams disclosed confidential information to an outside party or caused actual harm.

By contrast, the court found the disciplinary charge focused on the unauthorised removal of confidential information from NSFAS’s controlled systems by forwarding it to a personal email account. The judgment states the commissioner introduced considerations that were not part of the charge, including whether the information had been further distributed and whether NSFAS had proved probable harm, and that those errors materially affected the outcome on both misconduct and sanction.

The judgment emphasised that NSFAS is a public entity responsible for safeguarding the personal information of tens of thousands of students and is entitled to adopt policies prohibiting transfers of confidential information to personal platforms outside its control.

Next steps

Although the Labour Court found the arbitration award reviewable, it declined to substitute its own decision. Instead, it referred the dispute back to the CCMA for a fresh arbitration before a different commissioner to determine the classification of the conduct, Abrahams’s explanations and credibility, and the appropriate sanction after hearing the evidence anew.

The court made no order as to costs, finding it was reasonable for Abrahams to defend the arbitration award that had originally been in her favour.